People v. Vega-Robles, A137121

• Court: California Court of Appeals
• Writing for the Court: Dondero, J.
• Citation: 9 Cal.App.5th 382,215 Cal.Rptr.3d 284
• Parties: The PEOPLE, Plaintiff and Respondent, v. Jose VEGA-ROBLES, Defendant and Appellant.
• Docket Number: A137121
• Decision Date: 07 March 2017

9 Cal.App.5th 382
215 Cal.Rptr.3d 284

The PEOPLE, Plaintiff and Respondent,
v.
Jose VEGA-ROBLES, Defendant and Appellant.

A137121

Court of Appeal, First District, Division 1, California.

Filed March 7, 2017

Counsel for Plaintiff and Appellant Jose Vega-Robles: Joseph Shipp, By appointment of the Court of Appeal under the First District Appellate Project, Independent Case System.

Counsel for Respondent People of the State of California, Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Jeffrey M. Laurence, Supervising Deputy Attorney General, Christopher W. Grove, Deputy Attorney General.

215 Cal.Rptr.3d 294

Dondero, J.

9 Cal.App.5th 387

INTRODUCTION

A jury convicted Jose Vega-Robles of conspiracy to sell controlled substances, attempted robbery, and two first degree murders, and found true gang and firearm enhancements. He appealed, raising numerous issues, including a challenge to the gang experts' testimony on hearsay and confrontation clause grounds. In an opinion certified for partial publication filed on May 5, 2015, we reversed the conviction for the murder of Darrell Grockett for instructional error per People v. Chiu (2014) 59 Cal.4th 155, 172 Cal.Rptr.3d 438, 325 P.3d 972 (Chiu ). We ordered that on remand, the People had the option of accepting a reduction of defendant's conviction to second degree murder or retrying the first degree murder charge under theories other than natural and probable consequences. (Id. at p. 168, 172 Cal.Rptr.3d 438, 325 P.3d 972.) We rejected defendant's other appellate challenges to the judgment.

On July 29, 2015, the Supreme Court granted defendant's petition for review and deferred further action pending consideration of People v. Sanchez (review granted Sept. 5, 2014, S216681). (People v. Vega-Robles , review granted July 29, 2015, S226913.) On September 21, 2016, the Supreme Court transferred the cause to this court for reconsideration in light of the decision in People v. Sanchez (2016) 63 Cal.4th 665, 204 Cal.Rptr.3d 102, 374 P.3d 320 (Sanchez ). Thereafter, we requested and received supplemental briefing from the parties on the application of Sanchez to this case. Having considered the supplemental briefs, we conclude the testimony of gang experts Todd Tribble and Robert Brady, and the instructions on expert testimony, violated Sanchez in certain respects, but the errors were harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 ). We therefore reinstate our original judgment reversing in part and affirming in part, and remanding with instructions.

9 Cal.App.5th 388

STATEMENT OF THE CASE

In 2008, the Contra Costa County District Attorney filed an indictment charging defendant and four others with conspiracy to sell narcotic and non-narcotic controlled substances in violation of Health and Safety Code sections 11352 and 11378, from January 1, 2004, until November 30, 2005. (Pen. Code, § 182, subd. (a)(1) ); count 1.)¹ The indictment alleged 19 overt acts under count 1. Overt act Nos. 1 and 2 alleged the sale of methamphetamine by defendants to Robert Lott and by Lott to Tara Sander in 2004. Overt act Nos. 3, 4, 5, and 6 alleged a plan between defendants and Coby Phillips to kill Darrell Grockett on October 7, 2004. Overt act Nos. 7 through 15 alleged a plan between defendants and Ricardo Ruiz to kill Marcelino Guzman-Mercado on December 3, 2004. Overt act No. 16 alleged the burglary of Guzman-Mercado's residence by defendant and two other codefendants. Overt acts 17 through 19 involved defendant's nonfatal shooting of Jose Hernandez on February 21, 2005, with the assistance of Thomas Covey.

The indictment also alleged the conspiracy described in count 1 was committed to benefit two criminal street gangs, Family Affiliated Irish Mafia (FAIM) and Sureños. (§ 186.22, subd. (b)(1).)addition, natural and probable

In addition, the indictment alleged two counts of murder (§ 187, subd. (a); counts 2 [Grockett] & 3 [Guzman-Mercado] ), attempted robbery (§§ 211/212.5/664; count

215 Cal.Rptr.3d 295

4), residential burglary (§ 459; count 5), grand theft (§ 487, subd. (a); count 6), and attempted first degree murder (§§ 187, subd. (a)/664; count 7 [Hernandez] ). The indictment alleged counts 2 through 6 were committed to benefit the FAIM and Sureños criminal street gangs. (§ 186.22, subd. (b)(1).) And, in connection with counts 2, 3, and 7, it alleged a principal intentionally used and discharged a firearm, causing death or great bodily injury, for the benefit of the Sureños and FAIM street gangs. (§ 12022.53, subds. (b), (c), (d) & (e)(1)).

On March 26, 2012, the court granted defendant's motion to sever count 7, the attempted murder charge. The overt acts related to that count were not severed.

On June 8, 2012, the jury convicted defendant of counts 1 through 4 (conspiracy, murders of Grockett and Guzman-Mercado, and attempted robbery of Guzman-Mercado), and found both murders to be of the first degree. The jury found true the allegations that defendant committed (1) the conspiracy for the benefit of the Sureños and FAIM gangs, (2) the Grockett

9 Cal.App.5th 389

murder for the benefit of the FAIM gang, and (3) the robbery and murder of Guzman-Mercado for the benefit of the Sureños gang.

With respect to the firearm allegations, the jury found true that a principal party intentionally discharged a firearm during the Grockett murder and that the offense was committed for the benefit of the FAIM gang. The jury found the cognate allegation not true with respect to the Guzman-Mercado murder and the Sureños gang, but did find true the allegation a principal party used a firearm and committed the offense for the benefit of an unspecified criminal street gang.

The jury acquitted defendant of counts 5 and 6, residential burglary and grand theft, respectively.

The court sentenced defendant to an indeterminate prison term of 85 years to life. Defendant filed a timely notice of appeal.

STATEMENT OF FACTS

I. Prosecution Evidence.

A. Defendant's drug trafficking operations.

In 2004, Ricardo Ruiz lived in the Richmond/San Pablo area and knew Juan Delatorre, defendant's cousin, Primo, his brother, Sergio, and the brothers Rudolfo and Alejandro Figueroa. Before and during 2004, Ruiz was affiliated with Richmond Sur Trece (RST), a Sureño gang. Delatorre was also involved in RST, and Rudolfo Figueroa was affiliated with it to the same extent Ruiz was. Ruiz believed Alejandro and Rudolfo Figueroa were also affiliated with the Sureños.

Ruiz met Sergio Robles before he became acquainted with defendant or Primo. Ruiz's primary relationship was with Sergio. Sergio was involved in selling "crystal" and "coke," which he obtained in Los Angeles. Defendant was involved in drug sales with Sergio. Defendant's job was "selling dope." Ruiz knew this because "they used to come to my house all of the time and did their business there and I seen it." Also, defendant had all kinds of cars: "Mercedes, Jaguars, Beamers, ... Escalades."

Ruiz worked for both Sergio and defendant. He assisted them in their drug sales by picking up and delivering the drugs. He facilitated a drug sale from Sergio to Coby Philips. However, he did not deal drugs with or buy drugs from Coby Philips. Both Sergio and defendant asked Ruiz to transport drugs from Southern California to the north, but Ruiz declined to do so.

215 Cal.Rptr.3d 296

9 Cal.App.5th 390

Ruiz also acquired methamphetamine from defendant, Sergio and others, which he resold in small quantities. Defendant and Sergio did not share their drug profits with Ruiz. Ruiz did not share his profits from these sales with anybody. Primo was also involved in the drug sales. RST members were involved in selling crystal methamphetamine and marijuana.

Defendant was not in RST. He worked with his brother and "was higher on the food chain than a street dealer." In 2003 and 2004, defendant and his brother dealt in pound quantities. According to Ruiz, Delatorre was using and selling drugs at the same time. Initially, he got drugs from Ruiz, but eventually he got them directly from defendant and Sergio and became part of the distribution ring.

Ruiz knew who Coby Phillips was because Phillips's father and grandparents lived on the same street in San Pablo as Ruiz. However, he did not associate with Philips because Hispanic and White groups do not associate. Phillips had a leprechaun or a shamrock tattooed on his face near his eye. Ruiz was present when Sergio talked to Phillips about a drug transaction. Ruiz went with defendant and Sergio a couple times to Phillips's house in Vallejo to drop off drugs. Ruiz also went with Primo to sell drugs at...